November 19, 2021
Following the Fifth Circuit’s decision to extend its temporary hold on the vaccine Emergency Temporary Standard, OSHA has suspended all activities “related to the implementation and enforcement of the ETS pending future developments in the litigation.”
Sixth Circuit to review: The Sixth Circuit Federal Court of Appeals was chosen by judicial lottery to hear a consolidated version of the numerous lawsuits filed against the ETS. It will decide whether to grant a permanent injunction invalidating the vaccine mandate for large private employers, or else uphold it as lawful.
Notably, the Sixth Circuit has a significant majority of justices nominated by Republican presidents, raising the prospect they would likely agree with the similarly conservative Fifth Circuit judges who extended the hold on the ETS’s implementation. Regardless of the outcome, it is likely the ETS’s fate will ultimately be decided by the Supreme Court.
Under the OSHA Act, OSHA may only issue an ETS where it has determined that employees are exposed to a grave danger and where the ETS is necessary to protect employees from such danger. In its decision to extend the hold on the current ETS, the Fifth Circuit was extremely skeptical that OSHA had met this two-step burden, questioning whether the COVID-19 pandemic rose to the level of "grave danger" to all employees covered under the standard, and criticizing the vaccine mandate as an overbroad and unnecessary solution in any case.
Federal contractor vaccine mandate still in play: Although the future of the ETS looks increasingly murky, the EO federal contractor vaccine mandate remains in effect, with the Safer Federal Workforce Taskforce continuing to publish updated guidance and FAQs. The most recent round of new FAQs include sample signage detailing safety protocols that covered contractors should post at entrances to their facilities. Another new FAQ details scenarios in which an employee may receive an extension to the deadline for vaccination for medical reasons.
Outlook: The ongoing ETS litigation leaves employers in an increasingly precarious position regarding whether to forge ahead with compliance efforts. This scenario is further complicated by OSHA’s inability—because of the court-ordered stay—to issue further technical guidance, FAQs, or any other resources that might address the many outstanding questions related to compliance. While HR Policy plans to file comments presenting such employer compliance issues, the deadline to file is likely to be extended past the first week of December, as the hold on the ETS also prevents OSHA from reading any submitted comments. Meanwhile, employers covered by the federal contractor vaccine mandate must continue to prepare to have all covered employees fully vaccinated by the January 18, 2022 compliance deadline.